Citation Nr: 0920717
Decision Date: 06/03/09 Archive Date: 06/09/09
DOCKET NO. 08-06 073 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for a bilateral hearing
loss disability.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
S. Laskin, Law Clerk
INTRODUCTION
The Veteran served on active duty from December 1958 to
December 1960.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a July 2007 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.
FINDING OF FACT
A current bilateral hearing loss disability did not begin in
service, was not aggravated by service, and is not
etiologically related to service.
CONCLUSION OF LAW
A bilateral hearing loss disability was not incurred in or
aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38
C.F.R. §§ 3.303, 3.385 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran is seeking service connection for a bilateral
hearing loss disability. The Board will initially discuss
certain preliminary matters and will then address the
pertinent law and regulations and their application to the
facts and evidence.
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2008), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is
specifically to inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
Although the regulation previously required VA to request
that the claimant provide any evidence in the claimant's
possession that pertains to the claim, the regulation has
been amended to eliminate that requirement for claims pending
before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice
to a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121.
The timing requirement enunciated in Pelegrini applies
equally to the initial disability rating and effective date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The Veteran was provided VCAA notice by letter mailed in May
2007, prior to the initial adjudication of his claims.
The Board also notes that service treatment records have been
obtained, as well as pertinent private medical records.
Moreover, the Veteran has been afforded an appropriate VA
examination in response to his claim. Neither the Veteran
nor his representative has identified any outstanding
evidence that could be obtained to substantiate the claim.
The Board is also unaware of any such evidence.
The Board notes that the Veteran, in his February 2008
appeal, contended that the July 2007 VA examiner did not take
into consideration the April 2007 letter accompanying his
original claim, which detailed his unprotected exposure to
gunfire during service, and that therefore, the exam was not
adequate. However, for reasons discussed below, the Board
finds the examiner did take this evidence into consideration
and that the July 2007 examination was adequate.
In sum, the Board is satisfied that any procedural errors in
the RO's development and consideration of the claim were
insignificant and not prejudicial to the Veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1131. Service connection may be
granted for any disease or injury initially diagnosed after
service when all the evidence, including that pertinent to
service, establishes that the disease or injury was incurred
in service. 38 C.F.R. § 3.303(d).
Service connection for impaired hearing shall only be
established when hearing status as determined by audiometric
testing meets specified pure tone and speech recognition
criteria. 38 C.F.R. § 3.385. Audiometric testing measures
threshold hearing levels (in decibels) over a range of
frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155,
158 (1993). For the purposes of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385.
When audiometric test results at a Veteran's separation from
service do not meet the regulatory requirements for
establishing a "disability" at that time, he or she may
nevertheless establish service connection for a current
hearing disability by submitting evidence that the current
disability is causally related to service. Hensley, 5 Vet.
App. at 158.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996) (citing Gilbert, 1 Vet. App. at 54).
Analysis
The Board finds the preponderance of the evidence to be
against the Veteran's claim for service connection of a
bilateral hearing loss disability. While private medical
records do reflect a current hearing loss disability, the
evidence does not show the disability to be etiologically
related to service.
The Veteran's claim, submitted in April 2007, explains that
the Veteran was exposed to a specific "muzzle blast" and
general gunfire noise during the time of service, causing a
severe ringing in his ears and initiating his present hearing
loss.
The service treatment records do not reflect any complaints
of or treatment for hearing loss or other problems related to
hearing or noise exposure. At the time of his November 1960
separation examination, the Veteran achieved audiometric
results of zero in both ears at the Hertz levels of 250, 500,
1000, 2000, 4000, and 8000.
Following service, there is no clinical evidence related to
hearing loss until August 2004, three years before the
Veteran filed his claim and forty-four years after his
separation from service. On an August 2008 private medical
examination, the Veteran reported that he had had a whistling
in both ears since 1958, and that he had worn hearing aids
for 15 years. At that time, he also reported that his
hearing loss first occurred "after exposure to artillery or
other military noise for several years." Private medical
records also reflect that the Veteran ordered a hearing aid
from a private company in the early 1990s.
The Veteran was afforded a VA audiological examination in
July 2007. At that time, the Veteran reported that he was in
service from 1958 to 1960, and that during that time he was
exposed to noise from weapons training. He also reported
that after the military he joined the Army Corps of
Engineers, from which he retired after 26 years, where he was
exposed to air drills and heavy equipment, and that other
post-service sources of noise were limited to shotgun fire
from bird hunting. The Veteran furthermore reported that he
first sought treatment for his hearing in 1968, at which time
he was told that he had hearing loss, and that he began
wearing hearing aids in the 1990s. The Veteran was diagnosed
as having bilateral sensori-neural hearing loss.
After reviewing the record and examining the Veteran, the VA
examiner opined that it was less likely than not that the
Veteran acquired hearing impairment due to acoustic trauma
during service. The examiner also noted that the Veteran
provided a credible history of temporary tinnitus after
weapons training in service, and that this was a normal
physiological reaction to noise. The examiner explained,
however, that the Veteran was discharged with pure tone
thresholds within clinically normal limits, and that, by
history, the Veteran sought help eight years later, after
working for the Corps of Engineers. The examiner stated that
the Veteran's occupational and recreation noise exposure
after service resulted in hearing loss, as his hearing was
normal at the time of his discharge from service.
There is no medical opinion or other competent evidence of
record indicating a link between the Veteran's period of
service and a current hearing loss disability. His private
medical records refer to his own statements regarding noise
exposure during service, but do not contain any objective
medical findings that his hearing loss was specifically
caused by hearing loss during service.
As the service records indicate that the Veteran had normal
hearing at the time of his separation from service, and as
the only competent medical evidence of record suggests that a
current hearing loss disability is not related to service,
the Board finds a preponderance of the evidence to be against
the Veteran's claim.
The Board notes the Veteran's contentions regarding his in-
service noise exposure, and resulting tinnitus. The Veteran
is competent to report the noise exposure and ringing
symptoms he experienced during service.
However, as a layperson, the Veteran is not qualified to
render an opinion concerning medical causation. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the Veteran
is not competent to conclude that his exposure to noise in
service or in-service tinnitus caused his current hearing
loss.
Moreover, the July 2007 VA examiner acknowledged the
Veteran's contentions of in-service noise exposure and
tinnitus, and accepted such contentions as credible.
However, even considering the Veteran's in-service noise
exposure and tinnitus, the examiner found that it was less
likely than not that the Veteran acquired hearing impairment
due to acoustic trauma during service, based on the fact that
the Veteran's hearing was normal at the time of his
separation from service, and that he sought treatment for
hearing loss eight years after service, after being exposed
to post-service occupational and recreational noise.
Finally, the Board notes that the Veteran, in his February
2008 substantive appeal, contended that the July 2007 VA
examiner did not take into consideration the April 2007
letter accompanying his original claim, which detailed his
unprotected exposure to gunfire during service. He
furthermore contended that a valid medical nexus opinion
could not have been formed without considering his exposure
to noise during service.
However, the July 2007 VA examiner explicitly noted the
Veteran's in-service noise exposure and conceded that such
noise exposure would have been severe enough to result in
temporary ringing in the ears. Despite this, the examiner
still concluded that there was no nexus between such noise
exposure and a current hearing loss disability. The basis of
the July 2007 VA examiner's opinion was not that the Veteran
did not have in-service noise exposure; rather, it was that,
based on the fact that his hearing was normal at the time of
discharge from service and he did not seek treatment for
hearing loss until years later, the Veteran most likely did
not incur his hearing loss disability during service. Thus,
the Board finds that the July 2007 VA examiner gave due
consideration to the Veteran's claims of in-service noise
exposure and provided an adequate basis for his opinion.
In sum, the competent medical evidence of record is decidedly
against a relationship between the Veteran's hearing loss and
his military service. The evidence on the matter of nexus is
not in approximate balance, but preponderates against the
claims. As such, the Board concludes that service connection
for hearing loss is not in order.
ORDER
Entitlement to service connection for bilateral hearing loss
disability is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs